Clemons v. State

• Decision Date: 23 February 1893
• Citation: 21 S.W. 525,92 Tenn. 282
• Parties: CLEMONS v. STATE.
• Court: Tennessee Supreme Court

21 S.W. 525

92 Tenn. 282

CLEMONS v. STATE.

Supreme Court of Tennessee.

February 23, 1893

Error to circuit court, Houston county; A. H. Munford, Judge.

George Clemons was convicted of robbery, and brings error. Affirmed.

J. W Rice, S. J. Taylor, and J. S. Lee, for plaintiff in error.

The Attorney General, for the State.

CALDWELL J.

The plaintiff in error, George Clemons, is under sentence for robbery. His counsel insist upon a reversal and new trial for several reasons.

1. After the state's evidence was closed, and two witnesses Virgie Brown and Lou Brown, had been examined in behalf of the defendant, and his counsel offered to put him on the stand as a witness for himself, "stating that he had intended introducing defendant as a witness, but, by oversight, had failed; that it for the time escaped his mind and he never thought of it till Lou Brown was testifying; and that defendant would not testify on any subject that his two witnesses had testified on." That offer of counsel though supported by his affidavit, was refused, and the defendant was not permitted to testify. That action of the court is now assigned as error. The ruling of the court was right. The only authority in this state for allowing a defendant in a criminal case to give evidence in his own behalf is found in chapter 79 of the Acts of 1887; and that statute gives him the right to testify (section 1) only on condition that he "shall do so before any other testimony for the defense is heard by the court trying the case," (section 2.) The terms of the statute are so plain as to admit of but one construction; they are imperative, and must be enforced by the courts in every case. The provision is that the defendant may be the first witness in his own behalf, but not the second, third, or fourth. He may testify at one particular stage of the case, but at none other, under any circumstances. This is the rule established by the positive words of the act. The legislature made no exception; the courts can make none. It follows that the defendant, in the case at bar, was not entitled to be heard at the time he was offered as a witness, and that the action of the trial judge in refusing to permit him to testify was correct.

2. The verdict was in these words: "The jury on their oaths do say that the said George Clemons is guilty in manner and form as charged in the bill of indictment, and fix his punishment at five years' confinement." Upon that verdict the court pronounced sentence and adjudged that the defendant "be confined in the penitentiary of the state of Tennessee at hard labor for five years." It is insisted that the judgment was unauthorized, because it did not follow the verdict; and that the verdict was of no effect, because it did not state the place of confinement. Neither of these objections is well taken. The verdict, though not so full as usual, was valid in form. A recital of the place of confinement was not indispensable to its validity. The law supplied the place, as all confinements for more than 12 months must, by statute, be in the penitentiary. It was proper, therefore, for the court, in the judgment, to state the place of confinement; and, in doing so, he did not depart from the verdict. The judgment pronounced by the court was the proper judgment of the law upon the verdict as rendered.

3. It is insisted that the court should have allowed defendant's motion in arrest of judgment, and discharged him, and that this court should now do what the court below...